The ACLU vs. Itself on User Empowerment for Online Safety & Privacy

I have always found it strange that the ACLU speaks with two voices when it comes to user empowerment as a response to government regulation of the Internet. That is, when responding to government efforts to regulate the Internet for online safety or speech purposes, the ACLU stresses personal responsibility and user empowerment as the first-order response. But as soon as the conversation switches to online advertising and data collection, the ACLU suggests that people are basically sheep who can’t possibly look out for themselves and, therefore, increased Internet regulation is essential. They’re not the only ones adopting this paradoxical position. In previous essays I’ve highlighted how both EFF and CDT do the same thing. But let me focus here on ACLU.

Writing today on the ACLU “Free Future” blog, ACLU senior policy analyst Jay Stanley cites a new paper that he says proves “the absurdity of the position that individuals who desire privacy must attempt to win a technological arms race with the multi-billion dollar internet-advertising industry.” The new study Stanley cites says that “advertisers are making it impossible to avoid online tracking” and that it isn’t paternalistic for government to intervene and regulate if the goal is to enhance user privacy choices. Stanley wholeheartedly agrees. In this and other posts, he and other ACLU analysts have endorsed greater government action to address this perceived threat on the grounds that, in essence, user empowerment cannot work when it comes to online privacy.

Again, this represents a very different position from the one that ACLU has staked out and brilliantly defended over the past 15 years when it comes to user empowerment as the proper and practical response to government regulation of objectionable online speech and pornography. For those not familiar, beginning in the mid-1990s, lawmakers started pursuing a number of new forms of Internet regulation — direct censorship and mandatory age verification were the primary methods of control — aimed at curbing objectionable online speech. In case after case, the ACLU rose up to rightly defend our online liberties against such government encroachment. (I was proud to have worked closely with many former ACLU officials in these battles.) Most notably, the ACLU pushed back against the Communications Decency Act of 1996 (CDA) and the Child Online Protection Act of 1998 (COPA) and they won landmark decisions for us in the process.

In those and other cases, the ACLU playbook wasn’t just solely focused on a pure First Amendment defense. In other words, they didn’t just say ‘Well, First Amendment values are at stake here, and so all you parents, prudes, and policymakers should just get over your obsession with eradicating online porn.” No, what really won the day for us in these cases was the user empowerment angle. The ACLU rightly noted (and proved in court) that many “less-restrictive means” — filters, monitoring tools, ratings, labels, user education, media literacy, etc. — were available to the public and that those tools and strategies provided compelling alternatives to government regulation. Thus, paternalistic government regulation should yield to those alternatives and the public (namely, parents) should be expected to take responsibility and use those less-restrictive means to protect themselves and their kids. That is the proper approach for a society that cherishes free speech, personal responsibility, and a citizenry with diverse tastes and values.

Not only did the ACLU get courts to agree with this, but the logic of user empowerment as a trump to speech controls became so compelling to justices that in some cases they actually went beyond what free speech advocates had asked or expected, even in non-Internet related decisions. For example, in United States v. Playboy Entertainment Group(2000), the Court struck down a law that required cable companies to “fully scramble” video signals transmitted over their networks if those signals included any sexually explicit content. Echoing its earlier holding in Reno v. ACLU, the Court found that less restrictive means were available to parents looking to block those potentially objectionable signals in the home. Specifically, the Court argued that:

[T]argeted blocking [by parents] enables the government to support parental authority without affecting the First Amendment interests of speakers and willing listeners—listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.

More importantly, the Court held that:

It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.

The Court endorsed that same logic for video games in the landmark 2011 decision in Brown v. EMA, which struck down a California that prohibited the sale or rental of “violent video games” to minors.

As I noted in my old book on Parental Controls & Online Child Protection, this is an extraordinarily high bar that the Supreme Court has set for policymakers wishing to regulate modern media content or online expression. Not only is it clear that the Court is increasingly unlikely to allow the extension of analog-era content regulations to new media outlets and technologies, but it appears likely that judges will apply much stricter constitutional scrutiny to all efforts to regulate speech and media providers in the future. And we really have to thank the ACLU for getting this user empowerment revolution started because, make no doubt about it, it was that hook that ushered in this amazing jurisprudential revolution — for the Internet, for video games, for new media, for everything.

Sadly, however, the ACLU is now abandoning the user empowerment approach, at least as it pertains to digital privacy regulation.

In Stanley’s latest piece as well as many other ACLU statements on privacy issues, we hear almost nothing about the importance of keeping the Net free of unnecessary regulation or that government regulation should yield to user empowerment. Instead, we are told that citizens cannot be expected to look out for themselves in this way, or that they can’t possibly hope to “win the arms race” against online advertisers. I think that is utter nonsense. The fact of the matter is that it is far, far harder to win “the arms race” against online porn and objectionable speech using user empowerment tools than it is to defeat online advertising or “tracking.”There exists a very broad array of privacy-enhancing user empowerment tools and strategies today that can help privacy-sensitive individuals attain greater protection. Here’s a big filing I submitted to the Federal Trade Commission documenting just some of what is on the market today. (See Sec. VI). But here’s just a short list of things users can do or install to better enhance their online privacy:

adjust your browser’s privacy settings to clear out and block the cookies most online ad networks use and utilize private browsing or “incognito” modes to surf the Web more privately;

download AdBlockPlus and block almost all online advertising on most websites, and thus the data collection performed by online cookies. (It remains the most-downloaded add-on for both the Firefox and Chrome web browsers)

use “ad preference managers” from major search companies. Google, Microsoft and Yahoo! all offer easy to use opt-out tools and educational webpages that clearly explain to consumers how digital advertising works. Meanwhile, DuckDuckGo offers as alternative search experience that blocks data collection altogether.

Now, let me be clear: These solutions aren’t perfect. There are no silver bullets or simple fixes when it comes protecting our privacy online. But the exact same thing has always been true for objectionable online content. I find that by using tools and strategies such as those listed above, however, you can eliminate most online advertising and data collection from your digital life. By contrast, as good as online safety tools are, a lot more gets through. That’s because what counts as “objectionable content” is notoriously subjective and, therefore, no tool or strategy can ever work perfectly. “Good enough” seems to be the standard we have to accept here. Again, the same can be said for privacy controls, but it is my contention that, relatively speaking, they actually do a better job if you are willing to live with some inconveniences (as can be the case if you are constantly clearing out your cookies and blocking all scripts, some of which may be important for site functionality). But those are trade-offs you need to accept if you want to ensure all ads are blocked or no data is collected. (Of course, once again, the exact same thing is has always been true for objectionable online content. It can be a huge inconvenience for parents and guardians to try to deal with online porn and objectionable content using all those user empowerment tools and strategies, no matter how good they are). Regardless, my argument here is that, contrary to what many advocates of privacy regulation claim, privacy empowerment tools and strategies can be remarkably effective at screening out almost all online advertising and greatly limiting any collection of personal data.

I can imagine that one response to what I have said here is that, regardless of how well the respective classes of user empowerment tools work, privacy “harms” are more serious and deserve greater government scrutiny and regulation than objectionable online speech/content. But that’s a subjective squabble we’ll never be able to definitively answer. Plenty of people would argue the opposite: that exposure to online porn and objectionable speech will do more harm to minors and society than any amount of online advertising or data collection ever would. Personally, I think both harms are grotesquely inflated “technopanics,” as I noted in this 80-page paper on the topic.

I can anticipate another response that goes like this: “Well, what’s wrong with the government doing a little paternalistic nudging if it’s focused on better empowering users?” First, let’s be clear that groups like ACLU, EFF, and CDT did not adopt that position for objectionable online speech/content. And with good reason. They understood that if we invite the government to come in and create and/or mandate the empowerment tools to be used to address the problem, it could serve as a Trojan Horse that policymakers could later use to expand their influence over speech and speech platforms. But why, then, would the same concern not apply to efforts by the government to mandate certain privacy tools or controls? Such a move would serve as the same sort of open-ended invite to the government to come in and meddle more with online networks.

I suspect what this all comes down to is the artificial distinction between speech rights and economic liberties that the ACLU and other groups have made through the years. If the regulatory proposals are more about speech regulation, then the ACLU and others will say that personal responsibility and user empowerment represent the proper first-order response. But if we are talking about something perceived to be economic regulation (like advertising regulation), then the standard seems to change and all the talk of personal responsibility and user empowerment go right out the window. (Of course, this is just the classic distinction between “civil libertarians” and actual libertarians manifesting itself in a different way. While the two groups share a mutual distrust of government regulation of speech and social affairs, the civil libertarians distrust free markets and invite regulation of them there whereas the actual libertarians do not.)

But let’s ignore all these other issues and ask a different question: What about the precedent ACLU is setting here by saying user empowerment is hopeless when it comes to privacy? It goes without saying that more than a few social conservatives and regulatory-minded child safety organizations may be listening! Don’t be surprised if those folks throw the ACLU’s words back at them next time controls on speech and expression are being contemplated. They will argue that if people are sheep when it comes to protecting their privacy, then they must also be sheep when it comes to protecting themselves and their families from porn and other objectionable things online.

To me, the consistent and principled position here is this: Personal responsibility and user empowerment should be the first-order solution for all these issues. Governments should only intervene when clear harm can be demonstrated and user empowerment truly proves ineffective as a solution. Conjectural fears must not drive Internet regulation. While there are many legitimate online safety privacy concerns out there, we can find better, less-restrictive ways of dealing with them than by inviting greater government controls for cyberspace.

Adam Thierer / Adam is a senior research fellow at the Mercatus Center at George Mason University. He previously served as President of the Progress & Freedom Foundation, Director of Telecom. Studies at the Cato Institute, and Fellow in Economic Policy at the Heritage Foundation.